We appreciate Michael Dorf’s
serious engagement with our book and his conclusion that “it responds
effectively to the charge that liberalism focuses on rights to the exclusion of
responsibilities.” He charges us, however, with an “errant theodicy” – with making
the “claim that we have . . . the freedoms we have in virtue of a freestanding principle that respectful treatment of
persons requires granting them autonomy as responsibility.” (Our formulation
was “responsibility as autonomy.”) He also criticizes us for deriving basic
liberties from a “freestanding interest in autonomy.” In this response, we aim
to clarify our argument concerning responsibility as autonomy and to reject the
interpretation of our book as deriving basic liberties from any such freestanding
principle of autonomy.

In Ordered Liberty, we develop a civic liberalism that answers four
charges against liberal theories of rights: (1) irresponsibility (the argument famously made by Mary Ann Glendon,
that such rights license irresponsible conduct and preclude governmental
pursuit of responsibility in the exercise of rights); (2) neutrality (that such theories require neutrality among competing
conceptions of the good life, undermining civil society as “seedbeds of virtue”
and precluding government from promoting good lives); (3) wrongness (that liberals justify rights of autonomy on the ground
of “empty” toleration of wrong conduct instead of respect for the personal
capacity for responsibility or recognition of the substantive moral goods or
virtues fostered by protecting such rights); and (4) absoluteness (that liberals take rights too absolutely, to the
subordination of responsibilities, virtues, and the common good, and in doing
so debilitate the political processes and impoverish judgment).

As we understand Dorf, he
focuses on our book’s response to the irresponsibility critique. There, we show
the degree to which our civic liberalism permits government to encourage responsibility in the exercise
of rights but not compel what it
holds is the responsible decision. We do not argue for a general right to
responsibility as autonomy. We fear that we may have given the contrary
impression through our stylized contrast between (1) responsibility as
accountability to community and (2) responsibility as autonomy or
self-government and our use of Glendon and Ronald Dworkin as foils representing
these two understandings. Our response to the irresponsibility critique,
however, is not a political theory project of deriving rights from a
freestanding principle of autonomy. It is a constitutional theory project of
showing the ways in which recognizing constitutional rights like procreative
autonomy leaves room for government to moralize by, for example, encouraging
pregnant women to deliberate responsibility and conscientiously before having
an abortion.

Our primary treatment of the
grounds for justifying rights comes later in the book, in response to the
wrongness critique. There we undertake the constitutional theory project of
justifying constitutional rights already recognized in our constitutional cases
on grounds of both individual autonomy and the moral goods fostered by
protecting them. We do this, for example, with respect to the right of
procreative autonomy and the right to same-sex marriage. We grant that our
justification of basic liberties is not merely backward-looking, concerned only
with justifying the constitutional rights already recognized. We contemplate
that the constitutional practice of securing ordered liberty should go on as
before, reasoning by analogy from cases already decided to the new cases that
arise, developing lines of doctrine in a principled and coherent way. Even
here, though, we propose elaboration of basic liberties through common law
constitutional interpretation and reasoning by analogy rather than through
working from and elaborating a freestanding principle of autonomy. Indeed, in
Chapter 9, in our debunking of the “myth of strict scrutiny for fundamental
rights” under the Due Process Clause and our analysis of the actual practice of
reasoned judgment concerning ordered liberty in the line of cases from Meyer v. Nebraska (1923) through Planned Parenthood v. Casey (1992) and Lawrence v. Texas (2003), we implicitly
reject any idea of a freestanding principle of autonomy.

We largely accept Dorf’s list of
the various “sorts of reasons [that] justify the recognition of a right or the
conclusion that some proffered justification for infringing a recognized right
falls short.” He suggests that autonomy doesn’t add much, if anything, to the
reasons on the list. We agree that a freestanding principle of autonomy does
not operate in constitutional cases as a basis for deriving rights. But we
believe that common sense understandings of autonomy do manifest themselves in
constitutional cases, even through the very types of justifications on his
list. Dorf writes: “For example, one can read Griswold v. Connecticut [1965] to rest on the proposition that
there is a right of married couples to use contraception simply because any
effort to enforce the prohibition would intrude on constitutionally protected
privacy.” He then quotes Griswold:
“Would we allow the police to search the sacred precincts of marital bedrooms
for telltale signs of the use of contraceptives? The very idea is repulsive to
the notions of privacy surrounding the marriage relationship.” In justifying Griswold’s recognition of a right of
privacy, we interpret these very passages as reflecting concern to protect
freedom of intimate association within the marriage relationship in order to
promote the “noble purposes” of the institution. This interpretation
illustrates what we call “deliberative autonomy.” Deliberative autonomy here is
a structure that houses and articulates arguments made for basic liberties in
constitutional cases in a way that shows their coherence and defensibility. The
types of reasons for protecting rights of autonomy are down-to-earth,
ecumenical, and familiar, not abstract, freestanding, or “theodicean.”

In clarifying our argument, it
may be helpful to contrast two types of political and constitutional theory.
The first purports to derive all of our basic liberties or constitutional
rights from one basic principle, such as autonomy, dignity, liberty, or equal
concern and respect. The second, by contrast, begins with a list of basic
liberties typically recognized in constitutional democracies such as our own
(or already recognized in a constitutional practice like ours) and aims to show
how those basic liberties fit together and are best justified. Dorf seems to
interpret our theory as the former sort, but it is decidedly the latter. We
begin with the basic liberties already recognized in certain constitutional
cases and show how they fit together and are best justified as preconditions
for what we call deliberative democracy and deliberative autonomy. In Securing Constitutional Democracy: The Case
of Autonomy (University of Chicago Press, 2006), one of us (Fleming) called
this project a “constitutional constructivism” (by analogy to John Rawls’s
“political constructivism” as developed in his Political Liberalism (Columbia University Press, 1993)). The
justifications for the basic liberties, moreover, appeal to a number of
considerations that hang together, not simply to one freestanding principle
from which they all derive. Dorf may recognize this obliquely, since his “main
point” is that “affirming our belief in people’s capacity to act responsibly
does not count for much as a justification for individual rights, but it is a
necessary feature of such rights as we do recognize.”

Finally, we grant that some
philosophical accounts of free will may amount to what Dorf calls a liberal
“theodicy.” Dorf might criticize Dworkin’s discussion of free will in Justice for Hedgehogs along these lines,
and even more so Dworkin’s recent Einstein Lectures on “religion without god.”
We do not believe that our account of securing ordered liberty makes any
“theodicean” claim “that we have any of the freedoms we have in virtue of a freestanding principle
that respectful treatment of persons requires granting them autonomy as
responsibility.”

Finally, we grant that some
philosophical accounts of free will may amount to what Dorf calls a liberal
“theodicy.” Dorf might criticize Dworkin’s discussion of free will in Justice for Hedgehogs along these lines,
and even more so Dworkin’s recent Einstein Lectures on “religion without god.”
We do not believe that our account of securing ordered liberty makes any
“theodicean” claim “that we have any of the freedoms we have in virtue of a freestanding principle
that respectful treatment of persons requires granting them autonomy as
responsibility.”